expenditure for the payment of the carpenter and the mason for the upholding of the fabric, or whether it is susceptible of the wider sense which I have adverted to. I am very clear, from a consideration of the language of the statute and the usage which has always prevailed on the subject, that a rate for the repair of the church means a rate applicable to all the purposes to which church-rates had been usually applied, viz. the sustaining the fabric, the celebration of Divine ser vice in the church, and the performance of the ordinary duties of the churchwardens. The form of a rate for those general purposes has commonly been "A rate for the repair of the church" but it has always been applied to the performance of Divine service and the duties incident to the office of churchwarden. The earlier part of the 70th section would primâ facie require the narrower construction for which Mr. Collier has contended, "the repairs of all such district churches and chapels shall be made by the districts to which they respectively belong, by rates to be raised within the district." But the section goes on,-"in like manner as in case of repairs of churches by parishes; and every such district shall be deemed in law a separate and distinct parish for that purpose: and the repairs of all chapels not made district churches shall be made by the parish in or for which the chapels shall be built." Even without the aid of these latter words, I should have come unhesitatingly to the conclusion that the celebration of Divine worship would be included in the words "repairs of the church or chapel." The purpose of the legislature was the erection of proper places for the *celebration of the services and ceremonials of the church, and *235] not to leave it to the uncertainty of voluntary contributions.

The section immediately following, viz., the 71st, which is correlative, is to my mind even more distinct to show that the word "repairs" in s. 70 is used in the wider sense of expenses incurred in the maintenance of the fabric, the celebration of Divine service, and the performance of the duties of the churchwardens. It provides "that every such district shall remain nevertheless subject for twenty years, to be accounted from the day upon which the district church or chapel shall be consecrated, to the repair of the original parish church, and be deemed part of the original parish for all purposes of such repairs and the making and levying of rates for that purpose; and, from and after the expiration of such twenty years, the parish church shall be repaired by the district of the parish left as belonging to it after the other divisions of districts are made; and each district shall for ever thereafter make, raise, levy, collect, and apply separate and distinct rates for repairs of the church or churches or chapels of the district, as if a separate parish." In an earlier part of the statute (s. 16), the district parish is declared to be separated from the original parish; but all the rights of the original parish over the part so separated are retained, and the district parish remains liable to all the burthens to which it was subject while it was part of the original parish, in respect of church-rates, for a period of twenty years. Now, the church-rates made for the repair of the parish church during that period would be church-rates for the repairs of the church in the wide and general sense of including the maintenance of the fabric, the celebration of Divine service, and the performance of the duties of churchwardens;

and s. 71 says that the district shall remain *subject to the [*236 repair of the original parish church for twenty years, and be deemed part of the original parish for all purposes of such repairs and the making and levying of rates for that purpose. That must necessarily mean that the district shall remain liable to the original churchrate made in the form in which church-rates had usually been made; otherwise it would be necessary to make two rates,-one for repairs in the strict sense for which the district would be liable, and another for the ordinary purposes of a church-rate applicable as well to the maintenance of the fabric as to the celebration of Divine service and the other purposes to which a church-rate may legitimately be applied. The statute clearly could not have contemplated anything so inconvenient and absurd as the making of two church-rates. Then the latter part of s. 71 makes provision for a separate church-rate for the district after the expiration of the twenty years: it enacts that "each district shall for ever thereafter make, raise, levy, collect, and apply separate and distinct rates for repairs of the church or churches or chapels of the district, as if a separate parish." If during the twenty years a church-rate involving charges for the celebration of Divine service could not be imposed upon the district, what becomes of the provision for what shall be done after the expiration of the twenty years? The obvious meaning of the 71st section is, that, after the twenty years, the church-rate for the district parish shall be collected as a separate rate, but for the purposes for which the church-rate for the original entire parish was collected, viz., the maintenance of the fabric of the church, the celebration of Divine service therein, and the performance of the ordinary duties incident to the office of churchwarden. The words "repairs of the church" are evidently used throughout these two sections in the same sense. I *have, as in [*237 duty bound, come to this conclusion with an original mind, altogether unbiased by the decision which we are informed has been come to by a Court of co-ordinate jurisdiction before whom this application has already been made, but without success.(a) I have looked carefully at the various provisions of the statute, and I pronounce this decision without the smallest hesitation or misgiving. Having come to that conclusion, I am confirmed in it by the view taken by the Court of Queen's Bench, in the judgment delivered by a learned Judge who has been for a very long series of years especially conversant with the subject of church-rates. I therefore think we should be wanting in what is due to the administration of justice if we cast a doubt upon the question by granting a rule to show cause. For these reasons, I am of opinion that Mr. Collier's motion fails.

WILLES, J.-I am of the same opinion. At the time of the passing of the statute 58 G. 3, c. 45, the law was that the repairs of the church were to be paid for by means of a church-rate,-a rate for the repair of the fabric of the church, and for the expenses incident to the celebration of Divine service therein, and to the duties to be performed by the churchwardens. Taking the 70th and 71st sections together, it seems to me to se clear, that, when the 70th section speaks of the

(a) The application had already been made in the Queen's Bench, and a rule nisi granted, which, after argument and time taken for deliberation, was discharged. See The Queen v. The Official Principal of the Consistory Court, 31 Law J., Q. B. 106.

repairs of district churches and chapels being made by the districts to which they respectively belong, "by rates to be raised within the district, in like manner as in case of repairs of churches by parishes," it means nothing more or less than that which is found at the *238] end of the 71st section, viz., that the rate for the district shall be for the repair of the church in the same way as rates for the original parish were made; or, in other words, that church-rates should be made and levied for the district just in the same way and applicable to the same purposes in the district as church-rates were then raised by law for the parish. The language of the 70th section is certainly such as to invite doubt and discussion. But, when the two sections 70 and 71 are looked at together, and with reference to the state of things existing at the time of the passing of the Act, as also at the sections which precede and follow those two, I can entertain no doubt that the construction put upon the Act by Dr. Lushington and by the Court of Queen's Bench is correct.

BYLES, J.-I am of the same opinion, although I must confess that at the opening of the discussion I was a little inclined to think that the construction put by the Judge of the Consistory Court upon the Act of Parliament did some violence to the language. But, upon further consideration, apart from the respect which I must always entertain for a deliberate judgment of the Court of Queen's Bench, if this were res integra I should agree with my Lord that the rate in question is such a rate as the statute intended to provide for. The 73d section, it is to be observed, enacts that "two fit and proper persons shall be appointed to act as churchwardens for every church or chapel built or appropriated under the provisions of this Act, at the usual period of appointing parish officers in every year, and shall be chosen, one by the incumbent of the church or chapel for the time being, and the other by the inhabitant householders entitled to vote in the election of churchwardens, residing in the district to *239] which the church or chapel shall belong, and of any extraparochial place by such inhabitant householders as would be entitled to vote in the election of churchwardens if such extraparochial place had been a parish; and the two persons, when so elected churchwardens, shall appear and be admitted and sworn according to law, and shall collect and receive the rents of the seats and pews and pay the stipends or salaries appointed by the Commissioners to be paid to the minister and clerk of and belonging to the church or chapel for the time being, and also shall do, perform, and execute all lawful acts, matters, and things necessary and requisite for and concerning the repairs, management, and good order, and decency of behaviour to be kept and observed in the church or chapel by the congregation thereof." Taking that enactment with reference to the well-understood duties of churchwardens under the common ecclesiastical law, amongst which is that of providing for the decent and proper celebration of the most solemn offices of religion, and the absence of any direct provision for the necessary expenses incident to the performance of that sacred duty, it seems to me to follow that these must have been intended to be provided for by the sections of the statute which have been so often referred to, viz., "by rates to be raised within the district, in like manner as in case of repairs of churches by parishes."

Now, rates raised for the repairs of churches in parishes, are, rates raised for the repair of the edifice, and for other incidental purposes. It is plain from the decision of Dr. Lushington in Chesterton v. Farlar, 1 Curt. Eccl. Cas. 345, 355, that the rate which is spoken of in the same words both in the 70th and 71st section is to include incidental expenses. "The inhabitants of every part of the parish," says that learned Judge, "howsoever divided, are bound to contribute to #the maintenance of the parish church, and all legal expenses [*240 incident thereto: but there are exceptions admitted by law; and, in the present case, whether such exception exists or not depends on the Church Building Act. The 71st section of the 58 G. 3, c. 45, expressly enacts that 'the district shall remain subject for twenty years, to be accounted from the day upon which the district church or chapel shall be consecrated, to the repair of the original parish church, and be deemed part of the original parish for all purposes of such repairs and the making and levying of rates for that purpose.' I think that, according to the true construction of this clause, the inhabitants of the district are liable to be assessed to the incidental expenses, precisely in the same manner as to the repairs of the mother church: indeed, were it otherwise, the necessary consequence would be great inconvenience and confusion." Upon full consideration, therefore, it seems to me that it is not going too far to say that the 70th section gives not merely an implied but an express power to the churchwardens of the district church to make a rate which, in conformity with the decision of Dr. Lushington in the case cited, shall be applicable to the ordinary purposes to which a church-rate for the parish was by law applicable. The result of the enactment seems to be this,-The district church shall be repaired by means of a church-rate, which church-rate shall be applied, like any other church-rate, to the support of the fabric, the celebration of Divine service, and the other incidental expenses usually and properly chargeable upon it. And this is not only, as it seems to me, a healing decision, tending to settle differences, and consistent with the language of the statute, but it imposes no hardship upon any person. I agree, therefore, with my Lord, that, even if this were res integra, there is no room for doubt as to the decision to which we ought to come.

*KEATING, J.-I entirely concur in the decision at which my Lord and two learned Brothers have arrived. I think it is im[*241 possible to give a construction to the word "repairs" in the earlier part of the 70th section of the statute different from that which it must necessarily bear in the subsequent part of that section and also in s. 71. In order to discover the meaning of the legislature those two sections must be taken together, because both are necessary in order to accomplish the operation aimed at by the legislature in the case of separate ecclesiastical districts. The district was to be carved out of the parish, provision was to be made as well for the present repair and service of the church in the district as for that of the mother church, as well as for what was to take place when the district church was to become emancipated at the end of the twenty years. It therefore seems to me to be necessary, in order to ascertain what was the intention of the legislature, to look at the provisions in both those sections. Now, it was not denied by Mr. Collier, nor could it

be, that the word "repairs" in s. 71 would include not only the maintenance of the fabric of the sacred edifice, but also the necessary expenses incident to the celebration of Divine service therein: and, as the word must necessarily bear that meaning during the twenty years, I think it would be unreasonable to attach a different meaning to the same word in a cognate section of the Act. The only rational conclusion we can come to is, that the legislature used the same word in the same sense in the two sections, and therefore our decision must› be in conformity with those already pronounced by Dr. Lushington and by the Court of Queen's Bench. Rule refused.

*242] *CASWELL, Appellant; COOK, Respondent. May 12.

The Court will not give the respondent costs on dismissing an appeal against a derision of justices, where the question is a fairly arguable one.

Nor will they listen to an application for that purpose in the term after the decision.

IN Hilary Term last, the Court, after a lengthened argument, dismissed an appeal against a decision of justices declining to convict the respondent for an alleged offence against The Markets and Fairs Act, 1847 (10 & 11 Vict. c. 14), and the Wolverhampton Improvement Act, 1853 (16 & 17 Vict. c. xxviii.), in hawking without a license fruit and fish about the streets of that town on a market-day, nothing being said about costs.

Rider now moved that the respondent might be allowed his costs of appeal.

Welsby, for the respondent, was instructed to show cause in the first instance.

ERLE, C. J.-I was under the impression that costs were asked for at the time, and refused. From my recollection of the matter, I should certainly say that it was not a case for costs.

BYLES, J.-It is a most inconvenient thing to come and ask for costs in the term after the case was disposed of, and when the application is necessarily made to a Court somewhat differently constituted from that which pronounced the judgment.

KEATING, J.-The case was one of great public importance, involving a question of much interest to the whole town; and by no means a case in which costs would have been given. Rider took nothing.

*243]

*LOCKSTONE v. THE LONDON, BRIGHTON, AND SOUTH COAST RAILWAY COMPANY. May 13.

In an action against a railway Company for an injury resulting from the negligence of the company's servants, the Court directed that the costs of copying into the plaintiff's briefs the evidence given at an inquest held upon the bodies of other persons who had been killed on the same occasion should be disallowed.

The number of counsel to be allowed, and the amount of their fees, is in the (almost uncontrolled) discretion of the master.